CRITIQUE OF THE AUTONOMOUS NATURE OF PARTY AUTONOMY IN ARBITRATION

Abstract

Abstract
There is a global increase in the preference for arbitration. This increase has reinforced
the growing disaffection for the conventional adversary method of dispute resolution
which litigation provides. The agreement of parties is recognized as the heart of any
arbitration proceeding. It constitutes a contract to which parties refer their disputes which
have either arisen or that may arise in future to arbitration. This liberty to consensually
execute an arbitration agreement is what is now recognized as the principle of party
autonomy.
Party Autonomy afford parties a right whether in domestic, international commercial
arbitration, ad hoc or institutional proceedings to choose and determine their agreed
applicable substantive law as well as the procedure to be adopted, these laws and
procedure when chosen, regulate their relationship.
It is however doubtful whether parties have absolute freedom to determine the
arbitration process, and in actual fact, what has the freedom of parties achieved in the
resolution of disputes? And lastly, whether party autonomy is a reality?
This article adopts the doctrinal research method and analyses in summary, the
principle of party autonomy and answers the question whether the practical application of
party autonomy in arbitration is indeed a reality without any limitation.